JUDGMENT The judgment of the Court was as follows :–– The petitioner has taken out the present application sections 5, 11 and 12 of the Arbitration Act for revocation authority of the arbitrator, for his removal and appointment of arbitrator. 2. The application has been made under the following circumstances. The petitioner entered into a contract dated 17.3.78 with the respondent for construction of Sealdah Railway Station's platform No. 4A and No. 5. This agreement contained an arbitration clause. This arbitration clause provided that if the claim of the claimant would exceed Rs. 3,00,000/- then the dispute arising out of this contract would be decided by two arbitrators. The parties also agreed regarding the qualifications of the persons to be appointed as the arbitrators. Clause 63(2) provided that both the arbitrators must be Railway officers of equal status. Clause 63(b) of the contract provided: "The Railway will send a panel consisting of more than three names of Gazetted Officers of one or more departments of the Railway to the contractor who will be asked to suggest to the general manager one name out of the list for appointment as the contractor's nominee. The general manager, while so appointing the contractor’s nominee, will also appoint a second arbitrator as the Railway's nominee either from the panel or from outside the panel ensuring that one of two arbitrators so nominated is invariably from the accounts department.................................... officers of the Junior Administration grade of the accounts department of the Railway shall be considered as of equal status to the officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrators." 3. It is therefore clear that the parties agreed that the general manager of the Railway concerned will be the appointing authority. The contractor will have only the right to nominate a person from the panel to be appointed as his arbitrator by the appointing authority. It is also very clear that to be eligible to be appointed as arbitrators, both the arbitrators must be of equal status and an officer in the Junior Administrative grade in the accounts department will be treated as having equal status with that of the officers in the intermediate administrative grade of other departments of the Railway concerned. Moreover, one arbitrator must be appointed from the accounts department. 4. Moreover, one arbitrator must be appointed from the accounts department. 4. Disputes in respect of the contract arose between the parties and the petitioner made a claim for over Rs. 3,00,000/-. Under the Circumstances, the Railway sent a panel which contained, inter alia, the name of B. K. Banik, Deputy Accounts Officer, Eastern Railway and the petitioner nominated him. The General Manager appointed B. K. Banik as the petitioner's arbitrator and appointed as the Railway's arbitrator Y. P. Gulati, Additional Chief Engineer, Eastern Railway. The appointments were made by the General Manager by his letter dated 24.7.85. 5. The petitioner is unwilling to accept the appointment of Y. P. Gulati on the ground that this appointment was made in violation of the express terms of the agreement and is invalid. According to the petitioner, Y. P. Gulati is not of equal status with that of B. K. Banik. This allegation of the petitioner is admitted by the respondent in paragraph 10 of the affidavit-in-opposition filed on behalf of the respondent by one Habibur Rahman and affirmed on 27.11.85 where the deponent admitted as follows :–– "I state that at present there is no officer in the inter-administrative grade in the Railways except two additional Divisional Railway Managers who held ex cadre post. The said officers are respectively posted at Danapur and at Hawrah. The said officers having regard to the nature of their present duties cannot be made available for engagement as arbitrators. I state that for the purpose of the said arbitration clause the appointment of the said Sri Y. P. Galati must be taken to be and in compliance with the terms thereof". 6. The petitioner's counsel submits that the arbitration clause has been framed by the Railway. Why Y. P. Galati must be treated as of equal status with B. K. Banik when admittedly he does not belong to the inter-administrative other departments of the Railway? Why this arbitrary demand by the respondent? Why the respondent should be allowed to violate the express terms of the agreement dated 17.3.78 ? After this admission of the respondent, I am convinced that Y. P. Guluti is not eligible to be appointed as the arbitrator in terms of the agreement between the parties. The petitioner is not found to accept this appointment. 7. Why the respondent should be allowed to violate the express terms of the agreement dated 17.3.78 ? After this admission of the respondent, I am convinced that Y. P. Guluti is not eligible to be appointed as the arbitrator in terms of the agreement between the parties. The petitioner is not found to accept this appointment. 7. This application could have been disposed of on the ground mentioned above but the respondent's counsel bas raised a technical plea by way of preliminary issue which is important and has to be considered seriously. He submits that if the appointment 0f Gulati is invalid, as alleged by the petitioner, due to the reasons mentioned above, then the question of revocation of his authority would not a rise as be has done. Hence the present application under sections 5, 11 and 12 of the Arbitration Act is a misconceived application and must be rejected in limine. The petitioner's counsel on the other hand submits that the appointment is not void ab initio, as the appointing authority had the authority to appoint. But the appointee is liable to be removed due to his disqualification. The invalidity in this case is not due to want of jurisdiction to appoint but due to irregularity in selecting the personnel. 8. Mr. Sinha, counsel for the respondent, relies on (1) Alex Miller Merchants Ltd. v. A. C. Runo Aktiebolog, 59 CWN 61 at page 67 for showing instances of invalid appointments of Arbitrators Umpires. It has been recorded in that case that the following appointments are invalid :–– 1) If the appointment has to be made by agreement under seal but the appointment is made by a parol agreement (Re Tunno alld Bird, (1833) 5 B & Ad 488). 2) Where umpire is appointed by arbitrators without having authority to do so (Matson v. Trower, (1824) Ry & Moo 17). 3) Where an umpire is appointed after the arbitrators had entered upon the reference when agreement provides that the appointment must be before (Re-Hick, (1814) 8 Tauat 619). 4) Where two arbitrators having power to appoint a third arbitrator, appoint an umpire instead (Re Marsh, (1847) 16 L J QB 330). 3) Where an umpire is appointed after the arbitrators had entered upon the reference when agreement provides that the appointment must be before (Re-Hick, (1814) 8 Tauat 619). 4) Where two arbitrators having power to appoint a third arbitrator, appoint an umpire instead (Re Marsh, (1847) 16 L J QB 330). 5) Where agreement provides that two arbitrators would be appointed, one by each party but the arbitrator appointed by one party is appointed as the sole arbitrator without serving a notice under section 9 of the Indian Arbitration Act (Donald Campbell v. Girdharilal, AIR 1920 PC 123). 9. It was also held in this case that inspite of invalid appointments, the Court would not permit a party to take objection at a later stage after the party had participated in the arbitration proceeding without any protest with knowledge of the material irregularity in appointments, because equity will raise an estopped against the party and well personally disqualify him from taking objection by implying from his conduct waiver of the right to raise the objection. In the present case, however, the question of estoppel or waiver will not arise as the petitioner has moved this Court at the earliest opportunity. Mr. Sinha also relies on (2) Hindusthan Steel v. Appejay Pr. Gr. Ltd., AIR 1967 Cal 291 paragraph 7 where the learned single Judge held that an application for revocation of the authority of the arbitrator and his removal, would not lie alter the arbitrator had become functus officio due to expiry of time to make the award. But the facts of that case was peculiar. In that case, not only the time had expired but the parties themselves had abandoned the arbitration agreement by filing a suit on the subject-matter covered by the arbitration agreement and contested the same. Thereafter one party took out the application under sections 5, 11 and 12 of the Arbitration Act which was rejected by the Court on the ground mentioned above. In (3) Skabes v. State of West Bengal, AIR 1974 Cal 307 the Hindusthan Steel v. Appejay, was considered and it was held that the decision was given on the basis of the peculiar facts of that case. In (3) Skabes v. State of West Bengal, AIR 1974 Cal 307 the Hindusthan Steel v. Appejay, was considered and it was held that the decision was given on the basis of the peculiar facts of that case. As a matter of fact, in my judgment in (4) Rabindra Kumar Lohia v. Durgadutt Lohia reported in 85 CWN 161, I also extensively dealt with this Hindusthan Steel case and held that the decision in that case was given only on the basis of the facts of that case and that, the decision was contrary to the view taken on this point in an earlier Division Bench of this Court (5) Surendra Overseas v. Union of India reported in AIR 1965 Cal 183 . As a matter of fact in Hindusthan Steel's case, the decision reported in AIR 1965 Cal 183 was not considered at all. Another case relied on by Mr. Sinha is in (6) Lord v. Lord, reported in 119 English Report P. 531. In this case, the Court was dealing with a rule for attachment for non-performance of an award. The objection taken, inter alia, was the invalidity of the appointment of the umpire which made the award bad in law. The rule was discharged in this case as the court was doubtful regarding the validity of the arbitration proceeding. But this case did not deal with the point raised in this present case that when the appointment of the arbitrator or the umpire is invalid there will be no question of revoking his authority or removing him. None of these cases relied on by Mr. Sinha excepting AIR 1967 Cal 291 , supports his contention that the provisions under sections 5, 11 and 12 of the Arbitration Act, 1940 will not be attracted where appointment of an arbitrator or an umpire is invalid. Still his argument no doubt, has great force. But the principle communicated by Mr. Sinha cannot be treated as a general principle of universal application in all cases of invalidity of appointment. An appointment may be invalid due to total absence of inherent jurisdiction to appoint. Invalidity may also be caused due to material irregularity in making the appointment were there is no lack of jurisdiction to appoint. But the principle communicated by Mr. Sinha cannot be treated as a general principle of universal application in all cases of invalidity of appointment. An appointment may be invalid due to total absence of inherent jurisdiction to appoint. Invalidity may also be caused due to material irregularity in making the appointment were there is no lack of jurisdiction to appoint. Where there is want of inherent jurisdiction, the appointment is void ab initio but where it is defective due to material irregularity in the appointment that may be cured by participation of the parties in the proceeding without objection with the knowledge of the defect. Disqualification of arbitrator may be due to violation of stipulated conditions in the agreement for appointment, or due to conduct of the arbitrator himself, or due to special facts and circumstances of a particular case. In (7) M/s. Amar Chand Lalit Kumar v. Ambica Jute Mills Ltd., AIR 1966 SC 1036 . The facts were that at the relevant time, owing to the scarcity of raw jute in the market and speculations, the prices of raw jute had shot up abnormally whereby disputes and difference arose between the groups of buyers and sellers, which were referred to the arbitration of Bengal Chamber of Commerce and Industries for decision. Several applications were made by the sellers for removal of the arbitrators under section 5 of the Arbitration Act on the ground that Bengal Chamber of Commerce and Industry were either directly or indirectly connected with one or other of the jute mills who were all buyers of raw jute and as such due to the special and peculiar facts of the cases they were disqualified to act as arbitrators. The sellers had apprehensions of bias against the arbitrators due to prevailing exceptional circumstances at that time, in paragraph 13 of the report the Supreme Court, while holding that there were no exceptional circumstances in that case for apprehension of bias disqualifying the arbitrator, the Supreme Court also laid down five grounds for revocation of authority and removal of arbitrators as follows : (1) Excess of or refusal of jurisdiction by arbitrator. (2) Misconduct of arbitrator. (3) Disqualification of the arbitrator. (4) Charges of fraud. (5) Exceptional cases. 10. Mr. Sinha points out that in all five heads mentioned above the same were set out from Russel on Arbitration, 16th Edn. page 54. (2) Misconduct of arbitrator. (3) Disqualification of the arbitrator. (4) Charges of fraud. (5) Exceptional cases. 10. Mr. Sinha points out that in all five heads mentioned above the same were set out from Russel on Arbitration, 16th Edn. page 54. But in Russel's 19th Edn. Page 152, the 3rd head, 'disqualification of the arbitrator', has been omitted. According to Mr. Sinha, disqualification due to lack of arbitrator's stipulated qualification is no longer a ground for his revocation. But Russel's 19th Edn. at page 152 specifically gives the holding––"Disqualification and unfitness of the Arbitrator" and it also contains the observation that one of the grounds for objection is "... .. that the arbitrator either lacks the special qualification needed fir the stipulated tribunal". It is therefore clear that Mr. Sinha has misread page 152 of Russel's 19th Edn. The case of the petitioner is that one of the appointed arbitrators lacks special qualification stipulated in the agreement. But what will be its effect on the appointment? The petitioner's counsel relied on one of my unreported judgments delivered on 21.6.85 in Matter No. 280 of 1985 in M/s S. K. Samanta & Anr. v. Union of India. The facts of that case are similar to the facts of the parent case. The arbitrators appointed by the General Manager, Eastern Railway in that case, were not of equal status as stipulated in the contract, Samanta took out an application under sections 5, 11 and 12 of the Arbitration Act for revocation of the authority of the arbitrators. On the facts of that case, I held that the appointment was invalid and granted leave to the parties to revoke their authorities and appointed a sole arbitrator after removing the old ones. Relying on this decision, the petitioner's counsel submits that his this case too the authority of the arbitrators must be revoked on the basis of the invalidity of the appointment. I have already pointed out that the invalidity may be due to total absence of inherent jurisdiction to appoint by the appointing authority as also due to violation of any express stipulation regarding the qualification of the arbitrator agreed between the parties or due to non-compliance of the condition precedent etc. I have already pointed out that the invalidity may be due to total absence of inherent jurisdiction to appoint by the appointing authority as also due to violation of any express stipulation regarding the qualification of the arbitrator agreed between the parties or due to non-compliance of the condition precedent etc. In the latter case if any party to the reference with full knowledge of the defect, submits to the jurisdiction of the arbitrator without protest or objection or refrains from participating in it without raising any objection in this respect and thereby allows the arbitrator to make an ex parte award he will be debarred from raising the question of invalidity or irregularity of appointment at the later stage. The authority on this point is 59 CWN 61. It should be noted that in the list given in page 67 of 59 CWN 61 "irregular appointments" and "appointments without jurisdiction" both have been described as "invalid appointments" and have been held that the defect could be cured by participation without rejection. But in the decision in (8) Khardha Co. v. Raymon reported in AIR 1962 SC 1810 & in (9) Waverly Jute Mill's case reported in AIR 1963 SC 90 , the Supreme Court held that where the reference becomes invalid due to want of inherent jurisdiction of the arbitrator the plea of invalidity can be taken at the stage of appeal even if that has not been taken before the trial court in the application under sections 30 and 33 of the Arbitration Act. In view of the aforesaid authorities, I do not think that the observation contained in 59 CWN 61 that even in such a case parties will be debarred from raising objection at the later stage if they have participated in the proceeding without protest due to the principle of waiver or estoppel, is still a good law. In 59 CWN 61 at page 67, it was held that where umpire was appointed by the arbitrator who had no authority to appoint the umpire at all (Matson v. Trower) and where an arbitrator was appointed as the sole arbitrator by a party although the agreement provided for two arbitrators, each by one party and that was done in breach of the statutory provision of serving notice under sec. 9 of the Arbitration Act, the appointment, would be invalid but the parties would be bound by it if they had submitted in the jurisdiction of the arbitrator without objection. This judgment was delivered in 1954 long before the decisions of the Supreme Court in Khardha's case and Waverly Jute Mill's case which were pronounced in 1962/1963. The last two cases impliedly overruled 59 CWN 61 to the extent mentioned above. 11. My unreported decision in S. K. Samanta's case holding that the appointment was invalid due to material irregularity in appointment applies in full force in the present case. But I must record here that it would be better to describe such appointments as 'bad in law' or "irregular" instead of using the word "invalid" as was done in 59 CWN 61 by Bachawat, J. or by me in S. K. Samanta's case. The 'invalidity' strikes at the root whereas irregularity does not but both make the appointment bad. 12. In my opinion, in the present case, there is no question of total want of jurisdiction in appointment of arbitrator as the appointing authority had inherent jurisdiction to appoint but the appointed arbitrators did not possess the stipulated qualification which made the appointment irregular and bad in law. In the present case, the application under sections 5, 11 and 12 is maintainable and has been made at the earliest possible opportunity. Hence I allow this application. 13. In that view of the matter, leave is given to revoke the authorities of the Joint Arbitrators and they fire hereby removed. Mr. Sinha has raised another point that in AIR 1966 SC 1036 , paragraph 13, the Supreme Court has held that before the Court exercises its discretion under section 5 of the Act, it should be satisfied that a substantial miscarriage of justice will be caused in the event of its refusal to exercise its discretion in favour of the petitioner. A careful reading of this decision makes it clear that the Supreme Court in that case was considering the question of revocation of the authority of the arbitrator under section 5 on the allegation of 'bias' on the pert of the arbitrators. A careful reading of this decision makes it clear that the Supreme Court in that case was considering the question of revocation of the authority of the arbitrator under section 5 on the allegation of 'bias' on the pert of the arbitrators. The aforesaid observation in paragraph 13 was made in that connection that before revoking the authority of the arbitrator on the ground of allegee bias, the Court should come to the finding that there will be substantial miscarriage of justice if the arbitrator is allowed to remain and act. The fact of the present case is absolutely different. There is no allegation of bias in this case. The ground is that one of the arbitrators is disqualified as he does not possess the stipulated qualification. Therefore the question of considering the possibility of miscarriage at justice does not arise in this case as the disqualified arbitrator is not eligible to act as an arbitrator. 14. In that view of the matter, I appoint Mr. A. P. Bhattacharya, a retired Judge of this High Court as the sole arbitrator with a direction upon him to enter upon the reference within a fortnight from the date of receipt of the signed copy of the minutes of this order and make and publish his award within 6 months from the date of entering upon the reference. He will be entitled to engage a Stenographer, an interpreter and a clerk, if necessary and their remunerations are to he fixed by the parties at a meeting. In case of disagreement, the arbitrator himself will fix the same at his own discretion. The arbitrator's remuneration is fixed at 40 G. per each effective sitting irrespective of hours. All these remunerations are to be paid by the parties in equal share. A copy of the petition in the Sp. Suit No. 32 of 1985 and a copy of the order dated 10.6.85 passed in the said Special Suit No. 32 of 1985 are to be filed before the sole arbitrator to enable him to understand the precise scope of the reference. In the statement of claims disputes to be set out from the petition in the Sp. Suit No. 32 of 1985 and no change, addition, alteration or variation will be permitted without further order of Court. Cost of this application cost in the arbitration proceeding. In the statement of claims disputes to be set out from the petition in the Sp. Suit No. 32 of 1985 and no change, addition, alteration or variation will be permitted without further order of Court. Cost of this application cost in the arbitration proceeding. All parties, the outgoing arbitrators and income arbitrator are to act on this signed copy of the minutes of the order.